JAMES E. GLUBA, deceased, by LORRAINE GLUBA, Employee/Appellant, v. BITZAN & OHREN MASONRY, and GRINNELL MUT=L GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 13, 2006
PERMANENT PARTIAL DISABILITY - BLADDER; PERMANENT PARTIAL DISABILITY - PERIPHERAL NERVOUS SYSTEM. Substantial evidence supports the compensation judge=s denial of permanent partial disability for bladder dysfunction and alleged nerve root injury.
REHABILITATION - FEES & EXPENSES. Substantial evidence supports the compensation judge=s denial of the QRC=s bill for services on the basis that the services provided were not reasonable or necessary.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Dianne E. Walsh, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s denial of permanent partial disability and permanent total disability. We affirm.
James Gluba, the employee, sustained an injury to his hip and low back in the course of his employment with Bitzan & Ohren Masonry on November 26, 1996.
The employee=s claims for permanent partial disability and permanent total disability were heard by a compensation judge on March 5, 2003. The compensation judge=s Findings and Order were appealed to this court. In our decision, we affirmed the compensation judge=s finding that the employee had sustained ten percent permanent partial disability from the work injury under Minn. Rule 5223.0390, subp. 4C.(2). The compensation judge also found that the employee was permanently totally disabled from September 4, 2001, but that the employee=s work injury was not a substantial contributing factor in his disability after March 5, 2003. The compensation judge declined to award permanent total disability because the employee had not met the threshold requirement of Minn. Stat. ' 176.101, subd. 5. We affirmed the denial of permanent total disability benefits but reversed the determination that the work injury was not a substantial contributing factor in the employee=s disability after the hearing.
Dr. Richard Bailley, the employee=s treating physician for his work injury, had been asked by employee=s counsel in 2002 for an opinion on permanent partial disability and had been referred by the attorney at that time to Minn. R. 5223.0390, as the Aapplicable portion of the permanent partial disability@schedule. Dr. Bailley=s report of February 8, 2002, provided a rating of 22 percent of the whole body, utilizing Minn. R. 5223.0390, subp. 4.E. In the 2003 decision, the compensation judge did not accept Dr. Bailley=s opinion.
Subsequent to this court=s decision, the employee=s attorney contacted Dr. Bailley for another opinion on permanent partial disability. In her letter to Dr. Bailley, the employee=s attorney asked for a rating of permanent partial disability Afor the loss of strength and sensation in Mr. Gluba=s lower extremities.@ A copy of the Aapplicable portions@ of the schedule was enclosed, Minn. R. 5223.0420 and 5223.0430. In his response, Dr. Bailley stated,
Mr. Gluba=s situation is covered by Minn. R. 5223.0420, subp. 4 and 5. Mr. Gluba has weakness in his lower extremities referable to his third lumbar, fourth lumbar and fifth lumbar nerve roots. His current strength of multiple muscle groups supplied by those nerve roots is 4/5. The first time lower extremity weakness was noted on Mr.Gluba=s neurological examination was on December 15, 1997. The weakness had gradually progressed since that time.
Using the parameters noted above, Mr. Gluba currently has a 9.25% permanent partial impairment of his whole body resulting from the weakness of his lower extremities.
Dr. Bailley=s records indicate that he saw the employee on January 6, 2004. The employee=s history was of low back pain and intermittent numbness in his left leg, Awhich is a long standing problem.@ Dr. Bailley recommended x-rays and an MRI because of the employee=s advancing symptoms. The MRI was not done until June 28, because of insurance coverage issues, and showed moderately severe canalicular stenosis at L2-3 and bilateral severe foraminal stenosis at L5-S1. No nerve root involvement is shown. In his letter to the employee following the MRI, Dr. Bailley recommended a neurosurgical consult.
The employee had previously been treated for adenocarcinoma of the prostate, a condition which was not related to his employment or work injury. To help meet the permanent partial disability threshold, the employee=s attorney asked for an opinion on permanent partial disability from the physician who had treated the employee for this condition. Dr. Kurt Hansberry, in his report of May 28, 2004, stated,
With regard to his permanent/partial impairment of his reproductive and urinary system, I would classify Mr. Gluba under 5223.0600, reproductive and urinary tract schedules, subp. 3 bladder, class one which would be five percent based on sign/symptoms of his radiation cystitis, which intermittently requires treatment. But there are intervening periods when treatment is not required. This was first noted in early October 2002. However his last episode, based on records I have in the clinic, was from November 2002. I don=t know that he has had any problems with that since then.
With these reports, the employee filed a claim petition, seeking payment of an additional 9.25 percent permanent partial disability, payment of permanent total disability benefits after September 4, 2001, and payment of a bill for professional services provided by the QRC, Ione Tollefson.
The employee was evaluated on behalf of the employer and insurer by Dr. Nolan Segal on July 15, 2004. Dr. Segal had previously conducted an IME in 2002. In his September 24, 2004 report, Dr. Segal provided an opinion that the employee had a diagnosis of multi-level degenerative arthritis. He found no Aobjective evidence of any lower extremity neurologic deficits.@ Dr. Segal was of the opinion that the employee did not have any rateable permanent partial disability under Minn. R. 5223.0420. He stated that the employee=s permanent partial disability for his work injury remained at the ten percent that he had previously rated and that had been awarded by the compensation judge in 2003.
The employee=s claim petition was heard by Compensation Judge Gary Mesna on December 14, 2005. In his Findings and Order of January 20, 2006, the compensation judge determined that the employee was not entitled to permanent partial disability for his lower extremities, that the employee=s claim for permanent total disability was barred by res judicata for the period from September 4, 2001, through the date of the first hearing, that the employee did not have a bladder dysfunction which would support Dr. Hansberry=s rating, that the employee was barred from the receipt of permanent total disability benefits because of his failure to meet the requisite threshold and that the QRC=s bill for services was not payable. The employee=s surviving spouse appeals.
Permanent Partial Disability
The compensation judge found that the employee did not have a permanent bladder dysfunction which would entitle him to a rating of disability under the rule. The employee argues on appeal that the compensation judge=s decision is contrary to the evidence.
Dr. Hansberry=s report of May 28, 2004, is the only medical evidence on the issue of permanent partial disability from the employee=s cancer. The report rated the employee=s permanent partial disability under Minn. R. 5223.0600, subp. 3.A, which provides for five percent disability if there is organic bladder disorder with anatomic loss or alteration or if there is a neurological lesion which interferes with bladder function and which requires intermittent treatment.
We find substantial evidence to support the compensation judge=s conclusion that the employee is not entitled to a rating of permanent partial disability under the rule. The section requires either anatomic loss or alteration of the bladder or a neurological lesion requiring intermittent treatment. Dr. Hansberry=s report refers to intermittent treatment but also notes that there had been no treatment since November 2002. Dr. Hansberry does not address the requirements of the rule or provide any explanation as to how the provisions of the section have been met. It is the obligation of the employee to establish that the requisite elements of a permanent partial disability rating have been met. Lohman v Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987).
b. Lower extremity
In the 2003 decision, the employee was awarded ten percent permanent partial disability under Minn. R. 5223.0390, subp. 4. The claim in the present appeal requested additional permanent partial disability for the work injury under Minn. R. 5223.0420, subp. 4. The compensation judge denied the claim, finding that the evidence was not persuasive that the employee had any nerve root injury and that, in any event, partial loss of motor function is properly included in a rating under 5223.0390.
Minn. R. 5223.0420, allows for rating permanent partial disability of the peripheral nervous system resulting in motor loss to the lower extremities. Dr. Bailley used subpart. 4 - total or complete loss of the nerve root - and subpart 5 which contains a modifier for incomplete loss. However, as the compensation judge pointed out in his decision, Minn. R. 5223.0390, subp. 1.B., with regard to nerve root injury provides that, AIf the loss is less than complete, the ratings under this part are inclusive of any injury to the nerve root.@ Based on this language, the compensation judge concluded the employee=s claim was not allowed by the rules.
The appellant argues that the compensation judge=s decision denies employees a rating for loss of motor function in the lower extremities when there is a low back injury. We disagree. First of all, we find the rule to be unambiguous and, secondly, it would appear that Minn. R. 5223.0390, subp. 4, which deals with radicular syndrome provides for rating a low back injury with partial motor loss in the lower extremities. In any event, even if we were to accept the employee=s interpretation of the rules, it would not result in an award of permanent partial disability benefits. The compensation judge also found the evidence in support of the employee=s claim not persuasive. Medical records show no indication of nerve root injury and there are no findings to support that conclusion. Dr. Bailley did not explain the basis for his opinion. Further, Dr. Segal provided his opinion that the employee had no separate permanent partial disability rating for the lower extremities. Given this evidence, we are not able to state that the compensation judge erred in his determination on this issue.
The compensation judge held that the claim of the surviving spouse for permanent total benefits from September 4, 2001, to March 3, 2003, was barred by res judicata because the compensation judge in 2003 had denied the claim for that period in a decision which was affirmed by this court. The appellant argues that the denial of the claim in 2003 was based solely on the determination that the employee did not have sufficient permanent partial disability to meet the statutory threshold. Now that there is additional evidence of permanent partial disability, the appellant contends, a claim for permanent total disability back to September 4, 2001, should be available.
We have affirmed the compensation judge=s finding in the present case that the employee=s surviving spouse did not establish that the employee had more permanent partial disability than was found in 2003. Given our affirmance of the decision that the claim for permanent total disability is barred by the failure to meet the requisite permanent partial disability, we need not consider whether the claim is also barred by res judicata.
The employee=s surviving spouse presented at the hearing a bill for services provided by the QRC, Ione Tollefson in 2002 and 2003. The services provided from April through August 2002, were related to beginning a rehabilitation consultation. The services in March 2003 were primarily related to the QRC=s testimony at the 2003 hearing. The compensation judge denied all of the bills.
Records indicate that the QRC was first in contact with the employee in 1999, when she met with him for a rehabilitation consultation. She concluded at the time that the employee was not a qualified employee for rehabilitation services because he had returned to work with the pre-injury employer at a lighter job with no wage loss.
The QRC testified that the employee contacted her again in early 2002, and she met with him on May 3, 2002, to update his situation as part of determining whether the employee was eligible for rehabilitation services. The QRC determined that there was some uncertainty as to the employee=s work restrictions because of differing medical opinions. She recommended a functional capacities evaluation, a recommendation with which Dr. Bailley agreed, but the insurer refused to pay for the evaluation. The QRC took no further action on the consultation.
The compensation judge denied this portion of the bill because the consultation was not completed and the services provided by the QRC were not of benefit in advancing the rehabilitation plan. We find substantial evidence in the record to support the compensation judge=s factual finding on this point. We also affirm the compensation judge=s denial of the QRC=s bill for services provided in 2003. Those services were connected with the QRC=s testimony in the 2003 hearing. Minn. R. 5220.1900, subp. 2, identifies factors to be considered in determining whether the QRC=s services were reasonable and necessary. The key factor to be considered is whether the services are called for by the rehabilitation plan and are necessary in advancing the plan. The evidence demonstrates that QRC=s services in 2003, were not in furtherance of the rehabilitation plan but to assist in the employee=s litigation.
Constitutionality of Threshold
The appellant challenges the constitutionality of the threshold requirements of Minn. Stat. ' 176.101, subd. 5. As the parties indicate, this court does not have jurisdiction to consider this argument and it will not be discussed further. Quam v. State, 391 N.W.2d 803, 39 W.C.D. 32 (Minn. 1986).
 The employee died on May 30, 2005, from causes not related to his work injury and his claims were continued by his surviving spouse.
 The rule allows ten percent disability for radicular pain with radiographic abnormality at multiple levels. The compensation judge adopted the opinion of the IME in making his determination on this issue.
 The employee was 68 years old on the date of injury and had not completed 12th grade. The statute requires a permanent partial disability rating of at least 13 percent.
 Gluba v. Bitzan & Ohren Masonry, 64 W.C.D. 42 (W.C.C.A. 2003). A detailed recitation of the relevant facts up to the date of the first hearing may be found in the decision.
 See Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997).
 Compensation Judge Mesna was not the compensation judge who had heard this matter in 2003.
 Although Dr. Bailley did not provide the details of his computation, it appears he combined subp. 4.C and D for a total 37 percent and then modified that rating to provide for 25 percent of the percentage pursuant to subp.5.